Amin Sheikh Al v. Bruce Henry, Esq., Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1004/2017

[2018] HKCFI 1608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1004 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 28-year-old national of Bangladesh who entered Hong Kong illegally on 9 October 2013 and was arrested by the police on 15 October 2013.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 16 October 2013 on the basis that if he returned to Bangladesh he would be harmed or killed by members of rival political party Awami League (“AL”) or by the police for taking part in a riot.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Nitira, District Munshiganj, Bangladesh to a family of supporters of the Jamaat-e-Islami (“JeI”).  After leaving school he assisted his father in farming and also became a supporter of JeI regularly attending its meetings and rallies with his brother.

3.One day in May 2013 when the applicant and his brother were attending a large religious congregation held by JeI in Motijheel, Dhaka, they were attacked by supporters of AL and the scene turned into a riot, and when the police tried to disperse the crowd, both the applicant and his brother were hit by police batons resulting in bruises all over their body before they were able to flee the scene and ran home.

4.On the next day when they were out working, some police came to their home looking for them in respect of their involvement in the riot yesterday.  After the police left, they were advised by their father to stay away from home, and so the applicant went to stay at his friend’s place in Village Shingher Nondon, but when he feared that the AL supporters and the police may eventually be able to locate him, he decided to leave Bangladesh and departed on 10 May 2013 for China, and from there he sneaked into Hong Kong in October 2013 and subsequently lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 2 December 2015 with legal representation from the Duty Lawyer Service.     

5.By a Notice of Decision dated 7 July 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

6.In his decision the Director found the low intensity and frequency of past ill-treatment from the AL people or the police indicative of a small future risk of harm upon the applicant’s return to Bangladesh, that in any event he was never specifically targeted by the AL people, that from the evidence there is no substantial ground to believe that he will have a real and foreseeable risk of being subjected to his feared treatment by either the AL people or the police after all these years, that state protection would be available to him if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh that it would not be unduly harsh for the applicant as an able-bodied young man to safely move to other areas away from his home village.     

7.By a Notice of Further Decision dated 20 July 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, for which he filed his appeal on 19 July 2016, and for which he attended an oral hearing on 20 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 24 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found the applicant’s evidence of his involvement in JeI and the event in Dhaka in conflicts with objective COI, that his evidence in general not credible and that there are no substantial grounds to suggest that he will face a real risk of harms upon his return to Bangladesh, and concluded that his non-refoulement claim has failed on all applicable grounds.

10.On 4 December 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2)  irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3)  irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(4)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(5)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(7)  procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(8)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.  

11.These are all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and I do not find any basis or merits in any of them.

12.The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and mother documents all of which were in English and thereby given insufficient time to prepare for his appeal.

13.Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant and were made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing before the Board he never raised any issue over the hearing bundle nor did he make any request to the adjudicator for further time to enable him to properly prepare for his appeal.  In the circumstances I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal before the Board.

14.In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

15.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 17^th day of August 2018.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1